Supreme People’s Court strengthens judicial review of arbitration

liu guixiang at arbitration summit

Judge Liu Guixiang speaking at the China Arbitration Summit

At China’s Arbitration Summit in late September, Liu Guixiang, Chief Judge of the #1 Circuit Court, called attention to a notice that the Supreme People’s Court (SPC) issued earlier this year to strengthen judicial review of arbitration. The notice (Notice concerning some questions regarding the centralized handling of judicial review of arbitration cases关于仲裁司法审件归口办理有关问题的通知) is linked to the likely increasing number of cases involving judicial review of arbitration matters, linked to the increasing number of arbitrations involving Chinese parties (and the One Belt One Road initiative) both in China and elsewhere in the world, including Hong Kong International Arbitration Centre.  (The notice highlights data collection problems).

The notice, reproduced below, is not an SPC judicial interpretation. Unlike judicial interpretations, notices are not required to be published. It seems that the SPC itself has not officially published it, but several official websites have published it, as have a number of Wechat accounts.

A quick search reveals that the notice drew on  a 2014 study by the Guangdong courts summarizing the results of pilot projects  (including Shenzhen) that the SPC commissioned, involving cooperation with the now independent Shenzhen Court of International Arbitration. As is usual, Guangdong and Shenzhen have led the way as pilot areas for judicial reform. The study highlighted a list of problems with the way lower courts review arbitration related issues, including lack of consistency in reviewing cases. The study also highlighted problems in tracking case data.

As Judge Liu also mentioned (as has this blog), the SPC is working on a comprehensive judicial interpretation on that subject).  That judicial interpretation is still being drafted, with the #4 Civil Division of the SPC taking the lead.

A very rough translation and some comments written in italics follow. (Many thanks to an anonymous and well-informed follower of this blog for bringing the notice to my attention and for some thoughts.) Please call translation glitches/mistakes to my attention.

最高人民法院
关于仲裁司法审查案件归口办理
有关问题的通知

法[2017]152号

Supreme People’s Court

Notice Concerning Some Questions regarding the centralized handling of judicial review of arbitration cases

Fa (2017) #152

各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:

To the provincial, autonomous region, directly administered municipality higher people’s courts, People’s Liberation Army Military Court,  Production and Construction Corps Branch of the Xinjiang Autonomous Region Higher People’s Court:

为依法正确审理仲裁司法审查案件,保证裁判尺度的统一,维护当事人的合法权益,促进仲裁事业健康有序发展及多元化纠纷解决机制的建立,现就各级人民法院办理仲裁司法审查案件的有关问题通知如下:

To try correctly judicial review of arbitration cases according to law and guarantee a unified yardstick for judicial decision-making, protect the legal rights of parties, promote the healthy and orderly development of arbitration matters and the establishment of a diverse dispute resolution mechanism, we notify the various levels of the people’s court handling judicial review of arbitration cases of the following:

一、各级人民法院审理涉外商事案件的审判庭(合议庭)作为专门业务庭(以下简称专门业务庭)负责办理本通知规定的仲裁司法审查案件。

I.  The trial divisions (collegial panels) trying foreign-related commercial cases shall be the specialized trial divisions (below, “specialized trial divisions) responsible for undertaking the judicial review of arbitration as set out in this notice.

This means that SPC is requiring trial divisions (or collegial panels, in smaller courts) handling foreign-related commercial matters to be responsible for reviewing the arbitration related matters described in the next paragraph. It is a plus for competency/consistency in arbitration-related matters.

二、当事人申请确认仲裁协议效力的案件,申请撤销我国内地仲裁机构仲裁裁决的案件,申请认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决的案件、申请承认和执行外国仲裁裁决等仲裁司法审查案件,由各级人民法院专门业务庭办理。

II.  In cases in which a party applies to have the validity of an arbitration agreement recognized, cases in which application is made to cancel a domestic arbitration commission’s award, cases in which application is made to recognize (认可) and enforce a Hong Kong SAR or Macau SAR arbitration award, recognize (认可) and enforce a Taiwan area arbitration award, application is made to recognize (承认) and enforce a foreign arbitral award, shall be handled by the specialized trial divisions of each level of court.

This paragraph describes the types of cases covered by the notice–the types of judicial review of arbitration matters and that these cases should be handled by the specialized trial division of each level of court designated in the paragraph I. There is a difference in terminology (bolded above, but not in the original Chinese) when referring to the recognition of arbitral awards from Hong Kong, Macau, and Taiwan as distinguished from foreign arbitral awards, emphasizing that awards from these jurisdictions are considered part of “one country.”  Notice that cases involving domestic arbitration awards or disputes over the validity of an arbitration agreement to submit a dispute to domestic arbitration are also to be reviewed by the specialized trial division.  A big plus for consistency and competency in judicial review of arbitration matters.

专门业务庭经审查裁定认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决,承认和执行外国仲裁裁决的,交由执行部门执行。

When a specialized trial division, after review, has ruled to recognize and enforce a Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration award, recognize and enforce a foreign arbitral award, the enforcement shall be transferred to the enforcement departments for enforcement.

三、一审法院作出的不予受理、驳回起诉、管辖权异议裁定涉及仲裁协议效力的,当事人不服该裁定提起上诉的案件,由二审人民法院专门业务庭办理。

III.  When the first instance court makes a ruling which relates to the validity of an arbitration agreement relating not to accept, to reject a filing or objection to jurisdiction, and a party  disagrees with the ruling and appeals, the specialized trial division of the second instance court should handle it.

This  provision channels appeals relating to arbitration matters to specialists in the second instance courts, again a plus for competency and consistency.

四、各级人民法院应当建立仲裁司法审查案件的数据信息集中管理平台,加强对申请确认仲裁协议效力的案件,申请撤销或者执行我国内地仲裁机构仲裁裁决的案件,申请认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决的案件,申请承认和执行外国仲裁裁决的案件,以及涉及确认仲裁协议效力的不予受理、驳回起诉、管辖权异议等仲裁司法审查案件的信息化管理和数据分析,有效保证法律适用的正确性和裁判尺度的统一性。此项工作由最高人民法院民事审判第四庭与人民法院信息技术服务中心具体负责。

IV. Each level of people’s court should establish a centralized administrative platform for the judicial review of arbitration awards, to strengthen the informatized management and data analysis of cases regarding applications to confirm the validity of an arbitation agreement, cases regarding applications to cancel or enforce arbitration awards of our domestic arbitration institutions, applications to recognize and enforce Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration awards, cases regarding applications to recognize and enforce foreign arbitral awards, and cases relating to the judicial review of arbitration such as refusal to accept, reject the filing, or objection to jurisdiction and others relating to the confirmation of the validity of an arbitration agreement; the effective guarantee of the correct application of law and of a unified yardstick for judicial decision-making.  The #4 Civil Division of the Supreme People’s Court and the People’s Courts Information Technology Service Center shall be specifically responsible for this work.

IV. This paragraph requires a platform to be established to enable better data collection of arbitration related cases. Data collection appears to be an ongoing issue for the courts.  2015 SPC rules on case file numbers (thank you to Chinalawtranslate.com for this translation), are aimed to create more consistency in filing numbers for cases, and will also be helpful in this process. Inconsistency in case files numbers was identified as a problem in the Guangdong study.) The SPC’s #4 Civil Division (in charge of cross-border civil and commercial matters) and the Information Technology Service Center are the ones responsible for ensuring this platform works.  The notice does not require data results to be made public. The legal and professional public (in China and elsewhere in the world) would look forward to regular big data reports on this.

最高人民法院

2017年5月22日

Supreme People’s Court

May 22, 2017

_______________________________________

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“Clerking” for the Supreme People’s Court

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SPC President Zhou Qiang & Political Dept head Xu Jiaxin with 3rd group of interns, including a Peking University School of Transnational Law student

One of the unexpected influences of the United States system on the Chinese courts is the Supreme People’s Court’s (SPC) elite internship program, instituted in 2015.  (The German system of requiring law students to intern in courts, too, is an apparent influence). The word of mouth is that the SPC leadership noted that the US Supreme Court clerkships attracted top law students and wanted to do something similar in China.

The program is a small example of “foreign beneficial experience,” about which I wrote about earlier this year. The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision (as I wrote earlier):

Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.

President Xi Jinping’s further gloss on this is:

China shall actively absorb and refer to successful legal practices worldwide, but they must be filtered, they must be selectively absorbed and transformed, they may not be swallowed whole and copied (对世界上的优秀法治文明成果,要积极吸收借鉴,也要加以甄别,有选择地吸收和转化,不能囫囵吞枣、照搬照抄).

Unlike Supreme Court clerkships, which are done by recent law graduates, SPC interns are generally required to be students, generally at the master’s or PhD level.  The SPC selects several dozen outstanding students (the number seems to vary) to participate in the sixth month program.  They must be recommended by their law schools (each runs its own selection process)–see this notice by China University of Political Science and Law.  Applications are made to the Political Department of the SPC (it handles personnel matters) rather than to individual judges.  The program is part of the SPC’s outreach to educational institutions and efforts to create a more elite judiciary.

While most requirements are in line with internships in most parts of the world and the stress appears to be on outstanding academic qualifications, among the requirements for the program is having a firm political stand (政治立场坚定) (it seems to be standard for internships in Chinese government/or government affiliated institutions) and the application form asks about the political view of family members.

Preference is given to Beijing area law schools because no housing is provided, and from the lists of accepted interns, it is clear that more Beijing area interns are accepted. For those students from out of town, that means that they needed to find their own accommodations, but all can eat for free in the SPC cafeterias.  For Beijing based students, it likely means a long commute from the law schools based in the suburbs to be at work in the early morning.

Each intern is assigned a mentor, generally a presiding judge (审判长), therefore judge with long years of experience.  Interns are primarily assigned to the substantive/trial divisions (业务部门)  of the SPC and also other SPC offices including:

environmental and natural resources division;

criminal divisions;

State Compensation Office;

Administrative Division;

Enforcement Bureau;

Trial Supervision Division

Civil divisions;

Judicial reform office.

It seems that many were confronted with being assigned to work in areas of law that they had never before encountered, or being involved in work they had never before done. Some worked on judicial interpretation drafting,  many sat in on collegiate panel discussions of cases, assisted in case review, and assisted the teams of judges working on death penalty review while many helped their mentors with related research and administrative matters, finding their work reviewed meticulously, and spending long hours along with their (overworked) mentors.  Given the highly theoretical orientation of Chinese legal education, particularly at the graduate level, the interns (and their mentors) likely encountered major challenges along the way.

The circuit courts, too are taking interns, although they each seem to have their own requirements. The #2 Circuit takes interns from the law schools in Northeast China, the#6 Circuit Court from the Northwest provinces, the #3 Circuit from law schools within its Circuit, while the #1 Circuit Court has taken interns from the Shenzhen-based law schools (School of Transnational Law and Shenzhen University) as well as law schools in other parts of the country.

As part of its outreach to the academic community, the SPC also has a smaller program for legal scholars, seeking to attract elite academics.  That program limited to Chinese nationals from Chinese law schools, who generally should not be over the age of 50!

 

 

 

 

Signals in Zhou Qiang’s 2017 report (Part 2)

This blogpost continues the analysis in Part 1, which analyzed the first several sections of Zhou Qiang’s work report to the National People’s Congress, concerning court caseload, social stability and criminal punishment, and the courts serving to maintain the economy.

Most people who have commented (outside of China) on Supreme People’s Court (SPC) President Zhou Qiang’s March, 2017 report to the National People’s Congress (NPC) didn’t have the patience to read (or listen) much beyond the initial section, which mentions the conviction of Zhou Shifeng as indicating that the courts are doing their part to crack down on state subversion.  It appears to be another in a series of colorless government reports.  But for those with the ability (or at least the patience) to decode this report, it provides insights into the Chinese courts, economy, and society.

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The report, which went through 34 drafts, is intended to send multiple signals to multiple institutions, particularly the political leadership, in the months before the 19th Party Congress.

According to a report on how the report was drafted, the drafting group (which communicated through a Wechat group to avoid time-consuming bureaucratic procedures) faced the issue of how to summarize the work of the People’s Court in 2016 correctly.  The guidance from President Zhou on the report–it must:

  1. fully embody the upholding of Party leadership, that court functions (审判职) must serve the Party and country’s overall situation;
  2. embody the new spirit of reform, showing the (positive) impact of judicial reform on the courts and show the ordinary people what they have gained;
  3. not avoid the mention of problems, but indicate that they can be resolved through reform.

Underneath these political principles, the operation of a court system with Chinese characteristics is visible.

Guaranteeing people’s livelihood rights & interests

The following section is entitled  “conscientiously implement people-centered development thinking, practically guarantee people’s livelihood rights and interests.” It summarizes what the courts have been doing in civil and administrative cases, but it also signals their perceived importance in this national report.

Civil cases

President Zhou Qiang noted that the Chinese courts heard 6,738,000 civil  (民事) cases, an increase of 8.2%.  Although he did not define what he meant by civil cases, under Chinese court practice, it refers to the type of cases under the jurisdiction of the #1 civil division (see this earlier blogpost):

  1. Real estate, property and construction;
  2. Family;
  3. Torts;
  4. Labor;
  5. Agriculture;
  6.  Consumer protection; and
  7. Private lending.

On labor cases, the report mentioned that the courts heard 473,000 labor cases. This is a slight decrease from 2015 (483,311) (although the report did not do a year on year comparison). The report signalled that the SPC is working on policy with the labor authorities on transferring cases from labor mediation, labor arbitration, to the courts. This was signaled previously in the SPC’s policy document on diversified dispute resolution.  Articles on both the SPC website and local court websites have signaled the increasing difficulty of labor disputes, and the increase in “mass disputes.”

As explained in this blogpost, labor service disputes, relate to an “independent contractor,” but more often a quasi-employment relationship, governed by the Contract Law and General Principles of Civil Law, under which the worker has minimal protections. This year’s report did not mention the number of labor service cases. In 2015, the Chinese courts heard 162,920 labor service cases, an increase of 38.69%.

There was no further breakdown on the number of other types of civil cases, such as private lending or real estate cases.  For these statistics, we will need to await any further release of big data by the SPC. As blogposts in recent months indicate, private lending disputes are on the rise in economically advanced provinces and bankruptcy of real estate developers remains a concern.

This section also mentions criminal proceedings against illegal vaccine sellers, although the topic may be more appropriately be placed with the rest of the criminal matters, but likely because it is an issue that drew widespread public attention.

Family law

Echoing language in recent government pronouncements, the section heading mentions protecting marriage and family harmony and stability. The report mentions that the courts heard 1,752,000 family law cases in 2016, with no year on year comparison with 2015.  The report mentions that the SPC has established pilot family courts (as previously flagged on this blog).

Administrative disputes

First instance administrative disputes totaled 225,000 cases, a 13.2% increase over 2015, but a tiny percentage of cases in the Chinese courts. The report highlights developments in Beijing and Shanghai (they are being implemented in Shenzhen, although not mentioned), to give one local court jurisdiction over administrative cases.  According to the statistics (in Beijing, at least), this has led to a sizeable increase in administrative cases.  The report also mentions the positive role that the courts can play in resolving condemnation disputes (this blogpost looked at problems in Liaoning).

Hong Kong/Macao/Overseas Chinese cases

As mentioned by Judge Zhang Yongjian, the report mentions that the courts heard 19,000 Hong Kong, Macau, Taiwan, Overseas Chinese related cases, and handled 11,000 judicial assistance matters with the three greater China jurisdictions.  The report also mentions the recently signed arrangement between the SPC and Hong Kong judiciary on the mutual taking of evidence, a development that seems to have escaped the notice of the Hong Kong legal community.

Military related disputes

Unusually, the report mentioned that the local courts heard 1678 military-related cases and have developed systems for coordination between the civilian and military courts.  These developments have been analyzed further in a blogpost on the Global Military Justice Reform blog.

Strictly governing the courts and institutional oversight

The following two sections of the report give a report on how the courts are upholding Party leadership, increasing Party construction within the courts, internal Party political life, and political study, all of which are in line with recent developments. Although these are stressed, this does not mean that professional competence is less valued.  The increasing caseload,  higher expectations of litigants, particularly in commercial cases, and increasing technical complexity of cases means that the SPC is in fact taking measures to improving professional capacity of the courts.  This section also mentions courts and individual judges that have been praised by central authorities and 36 judges who have died of overwork.

On anti-corruption in the courts, the report mentions that 769 senior court officials have been held responsible for ineffective leadership, 220 have been punished for violations of the Party’s Eight Point Regulations. The SPC itself had 13 persons punished for violations of law and Party discipline (offenses unstated), 656 court officials were punished for abusing their authority, among whom 86 had their cases transferred to the procuratorate.

On institutional oversight, the report signals that the SPC actively accepts supervision by the NPC, provides them with reports, deals with their proposals, and invites them to trials and other court functions. On supervision by the procuratorate, the report revealed that the SPC and Supreme People’s Procuratorate are working on regulations on procuratorate supervision of civil and enforcement cases, a procedure sometimes abused by litigants.

2016 and 2017 judicial reforms

2016

On 2016 judicial reform accomplishments, the following were highlighted:

  1. circuit courts;
  2. case filing system;
  3. diverse dispute resolution;
  4. judicial responsibility;
  5. trial-centered criminal procedure system;
  6. separation of simple from complicated cases;
  7. people’s assessors‘ reform;
  8. greater judicial openness;
  9. more convenient courts;
  10. improving enforcement (enforcement cases were up 31.6% year on year), including using the social credit system to punish judgment debtors.

2017

The report mentions that among the targets for the courts is creating a good legal environment for the successful upcoming 19th Party Congress.  That is to be done through the following broad principles:

  1. using court functions to maintain stability and to promote development (for the most part mentioning the topics reviewed earlier in the report);
  2. better satisfying ordinary people’s demands for justice;
  3. implementing judicial reforms, especially those designated by the Party Center;
  4. creating “Smart” courts; and
  5. administering the courts strictly and improving judicial quality.

This last section mentions implementing recommendations required by the recent Central Inspection Group’s (CIG) inspection and Central policies applicable to all political-legal officials, before focusing on the importance of more professional courts, and improving the quality of courts in poor and national minority areas.

A few comments

It is clear from the above summary that the content of President Zhou Qiang’s report to the NPC is oriented to the upcoming 19th Party Congress and the latest Party policies. It appears that no new major judicial reform initiative will be announced this year.

It is likely too, that the selective release of 2016 judicial statistics in the NPC report also relates to messaging in line with the upcoming 19th Party Congress, although we know that the SPC intends to make better use of big data.  We can see that overall, the caseload of the courts is increasing rapidly, including institutionally difficult cases (such as bankruptcy and land condemnation), which put judges and courts under pressure from local officials and affected litigants. In the busiest courts, such as in Shanghai’s Pudong District, judges will be working extremely long hours to keep up with their caseload, and the impact of new legal developments. It appears (from both the report and the results of the CIG inspection) that judges will need to allocate more time to political study.  How this will play out remains to be seen. We may see a continuing brain drain from the courts, as we have seen in recent years.

 

Supreme People’s Court & foreign-related disputes

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Judge Zhang Yongjian, chief judge of the Supreme People’s Court (SPC)’s #4 Civil Division (responsible for foreign, Hong Kong, Macau, and Taiwan related commercial issues) previously featured on this blog, gave an interview to Legal Daily on the sidelines of the NPC meeting. This quick blogpost sets out some of the useful information from the interview:

He provided some data on the number of cross border cases:

  • Total number of foreign-related cases of all types (first, second instance, retrial, enforcement) heard and resolved: 25900, up 9.38%, among which 1061 were criminal,19200 civil and 3629 administrative, and about 2000 enforcement cases. The civil and commercial cases increased almost 11% compared to last year and accounted for about 75% of all foreign-related cases.
  • Total number of Hong Kong, Macau, Taiwan related civil and commercial cases closed: 27053 civil and commercial cases, Judge Zhang said that they accounted for 85% of all cases involving “greater China.”

The cases coming before the Chinese courts differ from the old trading and joint venture disputes, with many more cases involving demand guarantees, international factoring, private equity funds, stock options in companies listed overseas listed companies, cross-border telecommunications (fraud?), bonded trade disputes.

(As this observer has previously predicted), the number of cases related to One Belt One Road (OBOR) is increasing relatively quickly, while the number involving the United States, Britain, Germany, are decline. Cross-border project contracting and international logistics related cases are on the increase, as well as foreign-related intellectual property cases and maritime cases. Although Judge Zhang did not say so, it appears that many of these disputes are related to Chinese companies going out as well as OBOR, and may reflect inadequate documentation of the projects. The increase in maritime cases is linked to the ongoing decline in the shipping industry.  Chinese maritime courts have heard cases related to the Hanjin bankruptcy as well as large numbers of cases involving ship crew.

Challenges for the Chinese courts in hearing cross border cases:  encountering many “blank spaces” in Chinese legislation; conflict of laws with neighboring countries.  Other ongoing bottlenecks for Chinese courts in hearing cross-border cases–service of process to overseas parties; obtaining evidence crossborder; determining facts that have occurred abroad; determining and applying foreign law.

Judge Zhang highlighted the solutions for the Chinese courts in dealing with the difficulties:

  • SPC issuing judicial interpretations and other judicial guidance;
  • establishing a case guidance and reference system for the lower courts, including model cases, guiding cases, and selected cases (i.e. as selected by the SPC), to guide and limit judges’ discretion.
  • The SPC selecting some commercial cases (relating to free trade zones, internet finance, cross border investment financing) with an international impact as a model.
  • To enable correct and just hearing of cases, the higher and lower courts should be in touch in a timely matter and establish a system for supervision before, during and after a case. [What this means for judicial autonomy in hearing cases and the appeal system is not said.]
  • On the goals for 2017, those include establishing an OBOR dispute resolution center (推进设立“一带一路”争端解决中心的建立,促进“一带一路”建设). This is likely linked to the May, 2017 OBOR Conference to be held in Beijing.  Judge Zhang did not further specify, but it seems unlikely to mean establishing China’s own investment dispute resolution center. Perhaps this means increasing the role of Chinese courts in hearing cross-border cases involving OBOR jurisdictions.

Judge Zhang mentioned that he and his colleagues in 2017 have a variety of difficult issues that will be the subject of judicial interpretations or policy documents. This observer hopes that they will find it appropriate to consult the international legal community when drafting the following judicial interpretations that are on their agenda:

  • Enforcement of foreign civil and commercial judgments (possibly related the the Judgments Convention being negotiated under the auspices of the Hague Conference on Private International Law, and in the near term, to the enforcement of judgments through mutual judicial assistance treaties;
  • cross-border guarantees;
  • labor issues for ship crew;
  • damages in marine environmental cases;
  • jurisdiction in foreign-related cases, particularly civil and commercial cases;
  • judicial review of arbitration (this has been signalled for at least two years).

Judge Zhang signalled that they want to establish an English language website on foreign-related civil and commercial matters.  It is hoped that this new website will post information in a more timely manner than the current SPC English language website. An (unsolicited) recommendation is to hire an expatriate editor (similar to Xinhua and other Chinese media outlets) to assist in delivering content that meets institutional requirements and interests the foreign user.

All these developments relate back to one sentence in the Fourth Plenum Decision:

Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security, and development interests.

 

 

 

Supreme People’s Court Gazette enters the 21st century

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landing page for the SPC Gazette’s electronic platform

Recently the Supreme People’s Court (SPC) took another step in making its Gazette accessible to a mass audience, by establishing an electronic platform accessible from the Supreme People’s Court website:  www.gongbao.court.gov.cn.

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Screen shot of SPC landing page with link to the SPC Gazette

What benefits does the Gazette webpage have for the user? They include easy:

  1. Access to the cases published in the Gazette.  As this blog has highlighted earlier. cases published in the Gazette, both  selected judgments (裁判文书选登), cases decided by various trial divisions of the SPC and reflect their views on certain issues, and cases (案例), model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC, are considered quite persuasive, although not as authoritative as guiding cases. Those can be accessed through a full text search of the term being researched.
  2. Checking of which lawyers frequently practice at the SPC, through searching “selected judgments.”
  3. Following the careers of SPC judges. Below is a search for Huang Songyou, the disgraced SPC vice president:screen-shot-2017-03-05-at-9-50-05-pm
  4. Searching prior SPC reports to the NPC for key words, such as ”judicial reform“ or “state security.”
  5. Searching historical judicial statistics, for certain terms–second instances returned results, while “death penalty review” did not.
  6. Searching of judicial interpretations and judicial documents (policy and other SPC documents not considered to be judicial interpreations.)

Results of inspector findings at SPC

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In November, 2016, this blog reported on Central Inspection Group (CIG) #2 inspecting the Supreme People’s Court (SPC) ’s Communist Party group.  Recently, CIG #2 came back with feedback on its inspection.  SPC leadership was in attendance and circuit court leadership participated by videoconference. A rough translation of the problems identified follows:

During the tour, the inspection team found…some problems, mainly: “four consciousnesses” need to be further strengthened; political discipline and political rules are not implemented strictly enough; the leadership role of the Party group is insufficiently developed;  there are some gaps in the coordination of the advancement of the system of judicial system reform; the implementation of responsibility system for ideological attitude (意识形态责任制落实不够有力); there are weak links in Party construction; organizational construction is not systematic enough; internal Party political life is not strict enough; relevance of ideological political work is not strong; some Party leading cadres’ Party thinking is diluted (有的党员领导干部党的观念淡漠); the role of the basic level Party organization as a fighting fortress is insufficient; comprehensive strict governance of the Party is not strong, the implementation of the central eight point regulations is not strict enough; formalism and bureaucratic issues still exist; tourism using public funds, abuse of allowances and subsidies still occurs; personnel selection is not standardized; cadre management is not strict enough; there are some areas of clean government risk.

The report revealed that some cases have been referred to CCDI and the Party’s Organization Department for further handling.

President (and Party Secretary) Zhou Qiang accepted the criticism and promised to deal with it. A separate report revealed that a rectification strategy has been adopted and an office established to implement measures to respond to the criticism.

Comment

It is difficult, if not impossible for this observer to have independent sources of information on the implementation of political discipline, political rules, and ideological work in the SPC.

It does appear (to the outside observer) from the constant flow of judicial reform documents, judicial interpretations, judgments (and rulings), and the many other documents released by the SPC, that the large number of SPC judges and other support personnel have been professionally extremely productive.

One criticism that I had heard before was about coordination in the judicial reforms. As to why some reforms were rolled out before others, the reasons are likely complicated and relate to what was ready to go and generally accepted.  As to the implications one reform has on other reforms or the existing system, that is much more difficult to analyze, particularly if (as I suspect), the SPC’s judicial reform office does not have enough people to cope with the complexities of implementing judicial reforms in a highly bureaucratic state.

On the cases of violation of Party discipline revealed, it would appear that they were limited in number and apparently limited (for the most part?) to minor infractions, such as fiddling with subsidies and using government cars for private purposes.  In a large bureaucracy such as the SPC, it seems fair to assume that a few infractions are likely to occur. It seems reasonable to surmise that these cases will be wrapped up swiftly, before the upcoming National People’s Congress session, and we will learn more about the specific cases.

 

Supreme People’s Court adds four more circuit courts

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Meng Jianzhu meeting circuit court judges

The latest National People’s Congress Standing Committee (NPCSC) gave formal approval to the Supreme People’s Court (SPC) to establish four more circuit courts, located in Nanjing, Zhengzhou, Chongqing and Xian.  The Leading Small Group on Comprehensive Reform had given the nod to the SPC and its preparations at the beginning of November, so approval by the NPCSC was a foregone conclusion. The four new circuit courts held ceremonies on 28 and 29 December to inaugurate their operations. This means that circuit courts now cover the entire country. As discussed in my earlier blogpost, these are actually subdivisions of the SPC rather than being separate courts.

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Map of new circuits (thanks to Chinalawtranslate)

This blogpost looks at:

  • What the official reports signal about the Chinese judiciary; and
  • What these circuit courts mean for the Chinese judiciary now and in the future.

Signalling in official reports

The official reports related to the circuit court celebrated the circuit court judges and the courts themselves as both “red and expert.”

In this report, on their meeting with Meng Jianzhu, secretary of the Central Political Legal Committee, a subheadline has him meeting with circuit court “cadres” (孟建柱在会见最高人民法院巡回法庭干部…), while the first line of the report uses the phrasing “judge and other staff”  (全体法官和工作人员).  Meng Jianzhu stressed that close [flesh and blood] ties between the Party and the people in the judicial field is the important mission of the Supreme People’s Court Circuit Courts the circuit courts are under the leadership of his committee], while at the same time saying that “we should adhere to the [policy] direction of the judicial system reform,..create a professionalized trial team…”

Other reports note that of the 54 judges, 41 have either master’s or doctorate degrees. An infographic with photos of the senior judges and a map of the jurisdictions of the circuit courts can be found here.

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3rd circuit court judges receiving petitioners

Are the circuit courts just reception offices for petitioners?

This blogpost will draw on the insights of Zhou Yibin, one of my students at the School of Transnational Law of Peking University, located in Shenzhen, where I am privileged to teach some of China’s best and brightest.

Analyzing the documents related to the establishment of the circuit courts, she comments the circuit courts’ function of “trying important cross-administrative civil, commercial and administrative cases to ensure justice is repeatedly emphasized, while  diverting petitioners’ visits away from Beijing [as reported in this blogpost], reducing the workload for SPC .

Although the SPC knows that the pressure of petitioners’ visits is the direct reason to establish circuit courts, the SPC still wishes that the circuit courts will function more as courts to deal with the judicial localization [local protectionism] problem rather than another petitioners’ reception office. She notes that the huge pressure of dealing with petitioners visits and complaints  with small elite teams, means that they are working very efficiently.

Statistics are available for 2015 for the #1 and #2 Circuit Courts, and in 2016 for the #2 Circuit.In 2015, the #1 Circuit Court accepted 898 cases and closed 843, while the #2 Circuit Court accepted 876 and closed 810.  For the #2 Circuit Court, about half were civil and commercial cases (of which about 20% were transprovincial), while the remaining half was split between criminal and administrative cases.  The #2 Circuit Court dealt with 33,000 petitioners, while the #1 Circuit Court dealt with fewer than 11,000.  Through end September, 2016, the #2 Circuit Court had accepted 907 cases, and the number of petitioners had dropped considerably in 2016 to an average of 70-80 persons per day, down from almost 180 per day, with fewer petitioners complaining about injustices in litigation. It is understood that the number of cases accepted by the #1 Circuit Court has also increased in 2016 in comparison to 2015, although statistics are not yet available.

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Petitioners visiting the #2 circuit court, per month

 

 

 

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opening of 3rd & 4th circuit courts

Zhou Yibin notes the following issues, among others:

  1. First, limited by territorial jurisdiction and subject amount in controversy, there aren’t enough cross-jurisdictional cases for the circuit courts to try. She found that the head of the #1 Circuit Court had said the same.
  2. Mid-career SPC judges may be reluctant to be assigned to the circuit courts, when they have family in Beijing.
  3. Having circuit courts may lead to more inconsistencies among SPC judgments.

She wrote: the circuit courts are not likely to be an effective barrier to judicial local localization/protectionism. That local protectionism happens when the local courts abuse their adjudication power to protect local litigants’ interests. Judicial localization is the caused by the administration of judicial system and unconstrained exercise of administrative and political power.When it comes to judicial activities, local Party/government officials  tend to unduly influence the judges by leaving notes or giving direct instructions when they want to protect local interests. That is exactly why in 2015, the general office of the Central Committee of the CCP and the general office of the State Council jointly issued a notice requiring judges and clerks keep a record if any officials interfere cases in any form [see this earlier blogpost].

From this aspect, when the real concern is abuse of power and lack of institutional design to rein power, judicial reform in any form, would only be a “back-end pain killer”, rather than real surgery that can directly solve the source.

Conclusion

She concludes: as to whether circuit courts should continue to exist, people who are pessimistic about circuit courts characterize it as window-dressing. They believe circuit courts would not be the real key to deal with judicial localization and there exist better alternatives to deal with petitioners’ visits than circuit courts; therefore, the circuit courts should be eliminated before it creates further inconsistency and chaos to judicial system.

Zhou Yibin thinks circuit courts should continue to exist for the following reasons.

First, in 2015, SPC altered the amount in controversy and lower the barrier for case acceptance. Therefore, we can expect circuit court to play a more important role in providing neutral venue so as to fight with judicial localization.

Second, there are other efforts to curb judicial localization collectively. At the same time with setting up circuit courts, SPC is also exploring to set up cross-administrative courts. Currently, this experiment is steadily progressing in Shenzhen, Shanghai and Beijing. This wave of judicial reform has just started, and we need to allow a little bit more time for the circuit courts and cross-administrative courts to grow, to engage in trial and error and to mature.

Third,  aside from dealing with judicial localization, the circuit courts serve as pilot for SPC to improve the quality of its legal policy role by research into local legal issues and greater interaction with local legal communities. This is an important institutional function that is totally left out in the opponents’ objection. There are certainly institutional costs to maintain circuit courts, but we cannot ignore the institutional function of innovation that circuit courts serve.

I would also add to this that from the statistics provided above, the effect of the #2 Circuit Court’s work related to administrative cases can be seen in the reduction in the number of petitioners, particularly those complaining about injustices in the lower courts.

[For those who want to visit the circuit courts, detailed information about their location can be found here. As part of its efforts towards greater transparency and outreach to the foreign legal community, perhaps in the new year the SPC will publish clearer guidance on how foreigners can visit Chinese courts (although this is not likely to be a priority matter).]